A Blog of Members of the Administrative Law and Regulatory Practice Section of the American Bar Association

Friday, November 7, 2014

DOJ Proposes Rule to Aid Hearing or Vision Impaired Moviegoers

by Elisabeth Ulmer

The Department of Justice (“DOJ”) seeks comment on a notice of proposed rulemaking
(NPRM) to amend Title III of the Americans with
Disabilities Act of 1990 (“ADA”) with respect to the
exhibition of movies with closed captioning
and audio description.First, this
regulation would explicitly require theaters to exhibit such movies “at all times and
for all showings” whenever a version with these features has been
produced.Second, the regulation would
require theaters to “have a certain number of individual closed captioning and
audio description devices” available for people with hearing or vision
limitations.The DOJ is considering a
six-month compliance date for digital movie screens and a four-year compliance
date for analog (film) movie screens.

Title III of the ADA guarantees
effective communication for persons with disabilities.Covered entities, such as movie theaters, must
take “such steps as may be necessary to ensure that no individual with a
disability is excluded, denied services, segregated or otherwise treated
differently…because of the absence of auxiliary aids and services,” unless
these entities demonstrate a fundamental alteration or undue burden. 42 U.S.C.
12182(b)(2)(A)(iii).Under the ADA, this
obligation should be met across the United States, but although a large number
of motion pictures from the major domestic movie studios include closed
captioning and audio description, in some jurisdictions these versions are not
made available.

The DOJ has observed that
people who are deaf or hard of hearing or blind or have low vision accordingly
“still cannot fully take part in movie-going outings with family or friends”
and are deprived “of the opportunity to meaningfully participate in an
important aspect of American culture.”Moreover,
Americans with limited hearing or vision “represent an ever-increasing
proportion of the population.” Given the
current shift from analog to digital cinema systems, showing movies with closed
captioning and audio description is also now both easier and less
expensive.For all of these reasons, the
DOJ believes that its proposed amendments are “necessary in order to achieve
the goals and promise of the ADA.”

Under the proposed regulation, if
a movie has been produced and distributed with closed captioning and audio
description, theaters must procure and show this version.Theaters will not be obligated to create
their own captioning or audio descriptions and thus may show movies that have
not been produced with these features.The
proposed regulation also would require theaters to have a certain number of
individual captioning devices and audio description devices available upon request.This number will be ”based upon the number of
seats in the movie theater itself and can be shared among the screens in the
theater,” and theater staff must be capable of operating these devices and
instructing patrons on their use.Finally, theaters should provide notice as to which movies are available
with captions and audio description.

The
DOJ particularly seeks comment on the following two options regarding analog movie screens. Option 1 would be to adopt a four-year compliance date, which would allow
theaters with analog screens “to obtain the necessary resources to purchase the
equipment to provide closed captioning and audio description.”Alternatively, under Option 2, the DOJ would
postpone applying the requirements of its proposed regulation to theaters with
analog screens because the nature of analogs is fluctuating with the shift from
analog to digital cinema systems.

All comments are due on December 1, 2014.Interested parties are
invited to submit comments by any of the following methods: